Daily NationSATURDAY AUGUST 18 2018

 ivory trafficking

Feisal Mohamed Ali arraigned in Mombasa on August 3, 2018. He was acquitted of ivory trafficking charges. PHOTO | WACHIRA MWANGI | NATION MEDIA GROUP

By JIM KARANI
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There are three Kenyans on Interpol’s world’s most wanted criminal list. They are neither terrorists, nor drug traffickers.

They are not even human traffickers or illegal arms dealers. They are all ivory traffickers, part of an illicit and ruthless $10 billion (Sh1tn) trade that is about to wipe out the iconic species within our lifetime.

Of the three, Gedi Ahmed is wanted for the possession of 230 kilogrammes of elephant ivory in Utawala, Nairobi, in 2017.

He fled from authorities after being given bail at Kibera Law Courts.

The remaining two are brothers, Nicholas Jefwa and Samuel Jefwa, who have notoriously evaded authorities since 2015.

They are the suspected masterminds behind the exportation of 6,400 kilogrammes of elephant ivory concealed in export coffee destined for Thailand and Singapore in 2013.

This seizure remains Kenya’s largest illegal export of elephant ivory in its history.

Put into context, this seizure potentially relates to more than 500 poached elephants!

FEISAL ALI

Interpol has sent an international request to all its 192 member countries to arrest the three on sight and extradite them for prosecution in Kenya.

Their continued cat and mouse game enters its third year for the Jefwa brothers and a second year for Gedi.

Unfortunately, it is still not a guarantee that they will be convicted and sentenced if they are arrested.

Precedent from the courts shows that there is a high likelihood they will evade justice.

Recently, the High Court in Mombasa set free Feisal Ali, convicted for the trafficking of 2,152 kilogrammes of elephant ivory.

Feisal, too, had a dishonourable mention on Interpol’s most wanted list having eluded law enforcement for six months.

20-YEAR JAIL TERM

Feisal’s case related to 314 pieces of elephant tusks valued at Sh44 million seized in 2014.

Dr Sam Wasser, a scientist with University of Washington, sampled this ivory and conducted a DNA analysis to determine the origin of elephant tusks.

With a certain degree of accuracy, Dr Wasser determined that the tusks were from some 150 elephants emanating from the poaching fields of northern Tanzania.

Twenty-three witnesses gave evidence on how Feisal masterminded the transportation and offloading of ivory in a car yard where it was later seized.

He was convicted and sentenced by magistrate Diana Mochache to 20 years’ imprisonment and fined Sh20 million despite allegations of evidence tampering by the police.

This landmark precedent sent the desired deterrence — traffic in ivory and risk arrest, prosecution, conviction and harsh sentencing.

Two years into his jail term, High Court Judge Dorah Chepkwony set him free and all his co-accused, who are owners of the yard where the ivory was found.

CRIME CASES

This decision leaves puzzles unanswered. Who, then, is responsible for the 2,152 kilogrammes of ivory seized in Fuji Motors yard?

If it is not the owners of the yard, then who? How much more evidence is needed to convict?

This decision has undone a two-ton illegal elephant ivory bust, a six-month investigation, an Interpol INFRA TERA regional joint arrest operation, four years of court time and resources. These acquittals are not new to ivory trfficking cases.

Through the Eyes in the Courtroom project at WildlifeDirect, I have studied hundreds of wildlife crime cases in Kenya and specifically followed this and similar cases.

I have monitored this case in particular since June 2014 when police officers from Makupa Police Station got a tip-off and raided Fuji Motors yard in Tudor, Mombasa.

The four-year journey led us from seizure, arrest, prosecution, conviction and finally to acquittal.

Following these cases requires bravery as these criminals have ties everywhere and at one time Feisal threatened our journalists in court.

I have personally received death threats on multiple occasions.

POOR PROSECUTION

Only two in nine high-profile cases relating to major seizures in elephant ivory have been concluded.

All two cases have ended in acquittals. Earlier this year, Nicholas Maweu, a customs agent, was acquitted of his role in the seizure of 3,287 kilogrammes valued at Sh164 million at the port of Mombasa in 2013.

This ivory was concealed in groundnuts and upon seizure the true owners of this consignment were never charged with criminal offences.

Maweu was the only person accused in this case! While acquitting Maweu, the court cast doubts on investigations coupled with a poor prosecution that did not charge all key suspects involved.

Seven cases are currently pending in courts in various stages of determination.

They all relate to a shocking 12,455 kilogrammes of elephant ivory in evidence!

Some cases are celebrating their sixth anniversary in the corridors of justice, having begun in 2012. Delay is not new in these cases.

LAW

Loopholes within Kenya’s wildlife law also favour traffickers heavily.

When passing the Wildlife Act in 2013, MPs set a higher penalty for those engaging in trafficking of endangered species from the penalty of a five-year imprisonment and Sh1 million fine to life imprisonment and Sh20 million fine.

They however did not specify what illegal activity triggers the penalty in the law, leaving a loophole that preferred less punitive penalties in favour of suspected ivory dealers and traffickers.

Tourism Cabinet Secretary Najib Balala has made it his mission to correct this glaring loophole, and through the Statute Law (Miscellaneous Amendments) Bill, 2018, currently before Parliament, has proposed a raft of amendments that finally fix this problem.

HAJI APPEALS

When the bill passes into law, penalties against wildlife traffickers will be certain and enhanced.

Unfortunately, these efforts to amend the law will find Feisal and his comrades long gone.

Wildlife trafficking suspects are untouchable and always seem to avoid justice. There is no guarantee that pending cases will have a contrary outcome.

The precedent Feisal’s acquittal sets is now obvious for everyone to see.

Mr Noordin Haji, the Director of Public Prosecutions, has insisted he will challenge the decision in the Court of Appeal.

I remain cautiously optimistic that this audacious attempt with bear fruit.

Karani is the Legal Affairs Manager at WildlifeDirect